Here are Novell's motions in limine it just filed, as text, and keep stopping by, because as we get them finished we hope to complete them all.

We start with 629 [PDF], Novell's Motion in Limine No. 2 to Determine that First Amendment Defenses Apply to Slander of Title and 630 [PDF], Novell's Motion in Limine No. 3 to Determine that SCO is a Limited Purpose Public Figure. We already have Novell's motion in limine #1 as text here. You can find all of SCO's motions in limine as text that it also filed on February 8th in the previous article.

We'll divide up Novell's motions by category. On this page, you'll find the motions related to SCO's slander of title claim. As you read them, think about the SCO Group's position, that they would even sue Novell over this, and ask yourself, How reasonable are these people? It seems to me that in SCO's preferred universe, they get to make accusations and assertions in public, and no one is allowed to respond on pain of litigation. Is that America to you? No. Seriously. Here's SCO's Second Amended Complaint [PDF], so you can read their claim for yourself and form a reasoned opinion.

If you have some time to donate to this effort, please help us finish them up as text. We have readers who depend on screen readers, for one thing, and PDFs are a bit harder to work with, so from early days, Groklaw has tried to make the PDFs available also in plain text, and if you can lend a hand, that would be lovely. If we all do just a little bit, it's not burdensome on anyone. However, if you are already working on the Comes v. Microsoft exhibits, please continue with that project, if you don't mind.

As we did with SCO's motions, we'll leave off headers and signatures, for the sake of speed, so go by the PDF for anything important.

NOVELL'S MOTION IN LIMINE No. 2 TO DETERMINE THAT FIRST AMENDMENT DEFENSES APPLY TO SLANDER OF TITLE

I. INTRODUCTION

SCO claims that Novell slandered SCO's alleged title to the UNIX
copyrights by falsely stating that SCO did not own the UNIX
copyrights. (Second Am. Compl. ¶¶ 9-10, 91-92, Dkt. No.
96.) Novell has asserted the First Amendment as a defense.
(Novell's Answer ¶ 136, Dkt. No. 115.) The First Amendment
protects corporations, as the Supreme Court recently confirmed.
Citizens United v. FEC, 2010 U.S. LEXIS 766 (U.S. Jan. 21,
2010) (Ex. 2A). Novell moves for a ruling that First Amendment
defenses apply to SCO's slander of title claim, because the First
Amendment applies to any claim based on an alleged "injurious
falsehood."

I. FIRST AMENDMENT DEFENSES APPLY TO SLANDER OF TITLE

The Supreme Court held in New York Times Co. v. Sullivan,
376 U.S. 254, 280 (1964), that the First Amendment requires a
public official to prove that a defamatory falsehood about his
official conduct was made with "actual malice," meaning "knowledge
that it was false or with reckless disregard of whether it was
false or not." The Supreme Court later extended this defense to
claims by private individuals who are "limited public
figures."1
The Supreme Court also extended this defense to claims for invasion
of privacy and intentional infliction of emotional distress that
are based on allegedly false or offensive speech. See Time, Inc.
v. Hill, 385 U.S. 374, 390-91 (1967) (private individuals must
prove "actual malice" on invasion of privacy claim based on
allegedly false report on newsworthy matter); Hustler Magazine
v. Falwell, 485 U.S. 46, 51-53 (1988) (First Amendment applies
to intentional infliction of emotional distress claim based on
"outrageous" caricature of Jerry Falwell, a public figure).

The Supreme Court relied on the same principle in all of these
cases: First Amendment defenses to tort claims based on allegedly
false speech are essential to ensure adequate "breathing space" for
"uninhibited, robust, and wide-open debate" on matters of public
concern. See, e.g., New York Times, 376 U.S. at 269-72;
Time, 385 U.S. at 388; Hustler, 485 U.S. at 52.

Federal courts have relied on this principle in extending the
First Amendment to other claims directed against an allegedly
wrongful statement. The Tenth Circuit affirmed dismissal of an
injurious falsehood claim based on a "negative outlook" bond
rating, finding that this was a constitutionally protected opinion,
and plaintiff had failed to identify any false statement of fact.
Jefferson County Sch. Dist. No. K-1 v. Moody's Investor's
Services, Inc., 175 F.3d 848, 856 (10th Cir. 1999). The Tenth
Circuit held that the First Amendment also barred antitrust and
tortious interference claims, rejecting the argument that those
claims involved conduct rather than speech. Id. at 856-60. The
Tenth Circuit cited the Supreme Court's concern about "the chilling
effect on protected speech that might ensue if damages could be
recovered on emotional distress claims for publications that were
not provably false." Id. at 857, citing Hustler, 485
U.S. at 53-55. It also noted that the Ninth Circuit and other
courts had "reject[ed] a variety of tort claims based on speech
protected by the First Amendment," including trade libel, tortious
interference, and disparagement.2Id.; see Bose Corp. v.
Consumers Union, 508 F. Supp. 1249, 1270-71 (D. Mass. 1981)
(First Amendment applies to product disparagement claim), rev'd
on other grounds, 692 F.2d 189 (1st Cir. 1982), aff'd in
relevant part, 466 U.S. 485 (1984).

Similarly, the California Supreme Court held that First
Amendment protections "apply to all claims whose gravamen is the
alleged injurious falsehood of a statement" as "constitutional
protection does not depend on the label given the stated cause of
action." Blatty v. New York Times, Co., 42 Cal. 3d 1033,
1042-1043 (1987).3 Thus, the First Amendment applies to
claims for trade libel, negligence, and intentional and negligent
interference with economic advantage that "have as their gravamen
the alleged injurious falsehood of a statement..." Id. at
1037.

SCO's slander of title claim is explicitly based on Novell's
allegedly false statement that SCO does not own the UNIX
copyrights. While no court appears to have addressed whether
slander of title is subject to the First Amendment, the above cases
compel the conclusion that it is subject to the same First
Amendment defenses that apply to any claim based on "injurious
falsehood." Slander of title is closely related to injurious
falsehood, trade libel, and other torts to which the First
Amendment has expressly been held to apply. As Dean Prosser
noted:

There is a tort which passes by many names. Sometimes
it is called slander of title, sometimes slander of goods, or
disparagement of goods, or trade libel, or unfair competition, or
interference with prospective advantage....Under whatever name, the
essentials of the tort appear to be the same. It consists of the
publication...of false statements concerning the plaintiff, his
property, or his business.

1Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-52 (1974)
("actual malice" must be shown by individual who became public
figure by "voluntarily inject[ing] himself or [being] drawn into a
particular public controversy," and First Amendment requires proof
of fault even by a purely private individual).

NOVELL'S MOTION IN LIMINE NO. 3 TO DETERMINE THAT SCO IS A LIMITED PURPOSE PUBLIC FIGURE

I. INTRODUCTION

SCO claims that Novell slandered SCO's alleged title to the UNIX copyrights by falsely
stating that SCO does not own the copyrights. (Second Am. Compl. ¶¶ 8-10, 91-92, Dkt. No.
96.) SCO relies on statements allegedly made between May 28, 2003 and March 2004. (Id.
¶ 37.) These statements were after SCO had publicly asserted that the Linux operating system
was an illicit copy of UNIX and that SCO's ownership of the UNIX copyrights entitled it to
assert billion-dollar claims against IBM, Novell, and thousands of other Linux vendors and users.

Novell moves for a ruling that SCO is required to prove "actual malice" under the First
Amendment ("constitutional malice") because SCO injected itself into the public controversy
about SCO's alleged UNIX rights and thus became a "limited purpose public figure."1

"The worst case scenario for the Linux community could be that everyone running
Linux would have to pay licensing fees," and "[t]here also has been some concern
that SCO-Caldera is planning to charge license fees for GNU, GPL, open source, free
or otherwise public domain software." (2/5/03 MozillaQuest, Ex. 3H at NOVTR
5837.)

SCO "has filed a Dollars 1bn trade secrets lawsuit against IBM that could derail the
massive momentum built up around the free Linux operating system" (3/8/03 The
Financial Times, Ex. 3M; see 3/10/03 CNET News, Ex. 3N at 2), but "analysts
questioned whether the lawsuit has merit." (3/7/03, NewsFactor.com, Ex. 3L at 1.)

SCO "sent an unsettling letter to some 1500 companies worldwide," so "[i]f you use
Linux, SCO has just threatened to sue you." "If the company actually has something
to show, it's past time to put some cards on the table. As it is, SCO gives the
impression of trying to destroy the Linux community away with words that have little
backing in the real world." (5/14/03 LWN.net, Ex. 3O at 1.)

The First Amendment requires a "limited-purpose public figure" to prove by clear and
convincing evidence that the statement at issue was made with constitutional malice, meaning
"knowledge that [the statement] was false or with reckless disregard of whether it was false or
not." World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1136 (10th Cir.
2006) (citations omitted). "Limited-purpose public figure" includes a party that has "voluntarily
injected" itself or has been drawn into a matter of "public controversy." Id.; Gertz v. Robert
Welch, Inc., 418 U.S. 323, 351 (1974). Whether a party is a limited-purpose public figure is a
question for the court to resolve. World Wide Ass'n, 450 F.3d at 1137.

A company that invites public comment through the media may be a limited public figure.
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273-74 (3d Cir. 1980) (company was limited
public figure as to quality of beef because ads "invited public attention, comment, and

Here, SCO aggressively sought media coverage of its UNIX claims by press releases and
public statements issued before Novell made its allegedly slanderous statements. SCO's
campaign was widely viewed as an attack on the entire Linux community and the open source
principles on which Linux is based, with far-reaching implications. Thousands of companies and
individuals had a direct interest in the debate over whether SCO had the right to demand license
fees for software that SCO had released on an open source basis, and industry players and other
members of the public actively participated in the debate. SCO not only "thrust" itself to the
forefront of this controversy to influence its resolution (Waldbaum, 627 F.2d at 1297, 1300),
SCO created the controversy. Thus, SCO is a "limited-purpose public figure" concerning its
alleged UNIX rights and must prove that Novell acted with "constitutional malice."

_______________________

1
First Amendment defenses apply for the reasons in Novell's Motion In Limine No. 2.

2
SCO's press releases are at www.sco.com, and are submitted as Exhibits 3B to 3D. SCO has
admitted issuing the press releases and sending the letters. (Reply to Novell's Counterclaims
¶¶ 41, 51, Dkt. No. 121; Novell's Counterclaims ¶¶ 41, 51, Dkt. No. 120.) SCO's letter noted
that its suit against IBM was "widely reported and commented upon in the press." (Ex. 3E at 2.)

3See also Waldbaum v. Fairchild Pubs., 627 F.2d 1287, 1297, 1299 (D.C. Cir. 1980) ("viability
of cooperatives as a form of commercial enterprise" was "public controversy" because "debated
publicly" and had "substantial ramifications for nonparticipants"); Carr v. Forbes, 259 F.3d 273,
279 (4th Cir. 2001) ("public controversy" includes dispute that "has received public attention
because its ramifications will be felt by persons who are not direct participants"); World Wide
Ass'n, 450 F.3d at 1137 (debate concerning residential treatment programs for troubled teens).

NOVELL'S MOTION IN LIMINE NO. 4 TO PRECLUDE SCO FROM CONTESTING
THAT NOVELL
HAD AN OBJECTIVELY REASONABLE, GOOD FAITH BASIS FOR ITS
STATEMENTS REGARDING
COPYRIGHT OWNERSHIP.

INTRODUCTION

Judge Kimball held, as a
matter of law, that Novell's statements regarding ownership of
the UNIX
copyrights were based on Novell's "good faith interpretation" of the contracts
and
were not "objectively unreasonable." SCO did not appeal -- and the Tenth
Circuit did not
reverse -- these rulings. Therefore, the law of the case and
the mandate rule preclude SCO from
presenting any evidence or argument
contrary to these rulings.

I. UNDISPUTED FACTS

SCO asserted in its
Second Amended Complaint that Novell breached the implied
covenant of good
faith by "numerous acts of bad faith," including "making false and
misleading
statements denying SCO's ownership of the copyrights in UNIX and
UnixWare." (Second Am.
Compl. ¶ 99, Dkt. No. 96.) SCO also asserted that
Novell engaged in "unfair competition" by
"falsely claim[ing] ownership of
SCO's copyrights in UNIX and
UnixWare." (Id. ¶ 122.)1

In April 2007, Novell moved for summary
judgment on SCO's breach of contract and
unfair competition claims.
(Novell's Mot. for Partial Summ. J., Dkt. No. 272.) SCO argued in
its
Opposition that the implied covenant can be breached by "objectively
unreasonable conduct,"
and that SCO's other concurrent motions and evidence
showed that "Novell's statements were
false and Novell knew it." (SCO's Mem.
in Opp'n at 18-19, Dkt. No. 299.) Novell replied that
the implied covenant
did not "prohibit[] a party from making statements about its
understanding
of contractual rights," and that Novell's statements were not
false for the reasons in its
concurrent motions. (Reply ISO Novell's Mot.
for Partial Summ. J. at
15-16, Dkt No. 332.)

In August 2007, Judge Kimball
granted summary judgment for Novell on SCO's unfair
competition and contract
claims on several grounds. (Order at 63-65, 102, Dkt. No. 377.)
Judge
Kimball ruled that even if SCO owned the copyrights, Novell would be
entitled to summary
judgment on unfair competition because "there is no
evidence that Novell's public statements

1

were based on anything but its good faith
interpretation of the contracts." (Id. at 64.) He also
held that breach of
the implied covenant requires "objectively unreasonable conduct," and
that
"there is no evidence to demonstrate that Novell's position was
contrary to its own understanding
of the contractual language or objectively
unreasonable...." (Id. at
65.)

In November 2008, Judge Kimball entered a
final judgment dismissing SCO's unfair
competition and contract claims (as
well as other claims) per his prior rulings. (Final Judgment
at 1, Dkt. No.
565.) SCO appealed other rulings, but did not challenge the dismissal of
its
contract and unfair competition claims or the ruling that SCO failed to
present evidence that
Novell lacked an objectively reasonable, good faith
basis for stating that SCO did not own the
copyrights.2 The Tenth Circuit did not reverse that
ruling; on the contrary, it held that Novell
had "powerful arguments" to
support its position on copyright ownership, and that this issue
presented
"ambiguities" that "could legitimately be resolved in favor of either party."
SCO
Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir.
2009).

II. THE LAW OF THE CASE AND THE MANDATE RULE BAR SCO FROM
DISPUTING THAT NOVELL'S STATEMENTS WERE REASONABLE.

The law of the case
doctrine bars relitigation of "issues previously decided, either
explicitly
or by necessary implication." Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183
(10th
Cir. 1995) (citation omitted).1 This doctrine precludes relitigation of
issues decided for one
claim that are relevant to a different claim. See St.
Paul Fire &
Marine Ins. Co. v. Heath

2

Fielding Ins. Broking Ltd., No. 91
Civ. 0748 (MJL), 1995 U.S. Dist. LEXIS 19847, at *30-35
(S.D.N.Y. Dec. 30,
1995) (Ex. 4A) (law of the case bars negligent misrepresentation claim
in
view of prior dismissal of negligence claim). It applies to an alternate
ground for a ruling,
United States v. Sanchez, 35 F.3d 673, 678 (2d Cir.
1994), as well as to a ruling that the evidence
is legally insufficient to
support a claim. Rohrbaugh, 53 F.3d at 1183 (applying law of case to
ruling
that evidence was legally insufficient to show that plaintiff was a foreseeable
buyer whom
defendant had a duty to warn). This doctrine is subject to three
"exceptionally narrow"
exceptions for (1) substantially different evidence
in a later trial; (2) intervening change in
controlling legal authority; or
(3) a clearly erroneous decision whose application would work a
manifest
injustice. United States v. Alvarez, 142 F.3d 1243, 1247
(10th Cir. 1998).
4

Here, Judge Kimball dismissed SCO's
contract and unfair competition claims based on
his ruling that SCO
presented no evidence that Novell lacked an objectively reasonable,
good
faith basis for its statements regarding copyright ownership. SCO could
have appealed this
ruling, but failed to do so. None of the narrow
exceptions apply. Therefore, Judge Kimball's
ruling is binding law of the
case that bars SCO from relitigating this
ruling.

The mandate rule requires
the same result. As this Court held in denying Novell's Rule
60(b) motion,
"the mandate rule prevents a court from considering an argument that could
have
been, but was not, made on appeal." (Order at 3, Dkt. No. 620.) SCO
could have argued on
appeal that it had presented evidence that Novell
lacked a good faith basis for its statements.
SCO did not make this
argument. Therefore, the Court should preclude SCO from presenting
any
evidence or argument that Novell did not have an objectively reasonable, good
faith basis for
its statements regarding copyright
ownership.

___________________

1
SCO's contract and unfair competition claims include
other theories not at issue in this motion;
references to these claims
herein are limited to the "false assertion
of copyright ownership"
claim.

2 Copies of SCO's appellate briefs, as well as Judge
Kimball's summary judgment ruling and
the Tenth Circuit decision, were
included with Novell's Motion In Limine No. 1. SCO's
appellate briefs did
not even mention Judge Kimball's determination that Novell had a
reasonable,
good faith basis for its statements.

3See
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250-251
(D.C.
Cir. 1987) ("legal decision made at one stage of litigation,
unchallenged in a subsequent appeal
when the opportunity to do so existed,
becomes the law of the case for future stages of the same
litigation, and
the parties are deemed to have waived the right to challenge that decision at a
later
time").

NOVELL’S MOTION IN LIMINE
NO. 5 TO PRECLUDE SCO FROM
RELYING ON NOVELL’S JUNE
AND AUGUST 2003 STATEMENTS
AS FACTUAL ASSERTIONS OF
COPYRIGHT OWNERSHIP.

SCO claims that Novell slandered its title by asserting that “Novell, and not
SCO, owns the
UNIX and UnixWare copyrights.” (Dkt. No. 96, ¶ 91.) SCO’s complaint points to
statements
allegedly made by Novell from May 2003 to March 2004. (Id., ¶ 37.) However, SCO
has
distorted the substance of these statements. In particular, Novell’s June and
August 2003
statements cannot reasonably be read as asserting copyright ownership as an
objective fact. Thus,
SCO should be barred from relying on these statements at trial to support its
slander of title claim.1

I. SCO MUST PROVE THAT NOVELL’S STATEMENTS CAN REASONABLY BE
INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT OWNERSHIP

Slander of title requires publication of a false statement “disparaging
claimant’s title.”
First Sec. Bank of Utah v. Banberry Crossing, 780 P.2d 1253, 1256-67 (Utah
1989). Whether a
statement is reasonably capable of a wrongful meaning is a question of law for
the Court. West
v. Thomson Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court “must carefully
examine the
context in which the statement was made,” and cannot make this determination by
“viewing
individual words in isolation.” Id. at 1009. A statement is not actionable if
the context makes
clear that “the speaker is expressing a subjective view” or “interpretation,”
rather than “claiming
to be in possession of objectively verifiable facts.” Haynes v. Alfred A. Knopf,
Inc., 8 F.3d 1222,
1227 (7th Cir. 1993); see West, 872 P.2d at 1018-20 (view that politician
misrepresented position
to get elected was non-actionable opinion based on inference from true
facts).2

1

II. NOVELL’S JUNE 6, 2003 LETTER AND PRESS RELEASE DID NOT
ASSERT THAT NOVELL OWNS THE UNIX COPYRIGHTS

III. NOVELL’S JUNE 26, 2003 LETTER DID NOT ASSERT THAT NOVELL
OWNS THE UNIX COPYRIGHTS

SCO asserts that Novell’s June 26, 2003, letter to SCO “called SCO’s claims of
ownership of UNIX and UnixWare 'simply wrong.’” (Dkt. No. 96, ¶ 37(e).) This is
another
distortion. Novell said that “SCO’s statements” are wrong, referring to SCO’s
assertion that it
owns “all of the intellectual property rights associated with UNIX and
UnixWare,” including
“the patents” and other rights. (Ex. 5C (emphasis added).) Novell explained that
there was no
evidence that “SCO owns all of the patents associated with UNIX and UnixWare.”
(Id.) Novell
was correct. SCO does not own the UNIX patents, as SCO’s witnesses have
admitted.4
Thus,
SCO cannot own “all” UNIX intellectual property, including patents. Novell’s
further comment
that Amendment No. 2 “raises as many questions as it answers” (id.), is a true
statement that the
amendment is unclear. See The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201,
1215 (10th Cir.
2009) (the “language of Amendment No. 2 concerning the transfer of copyrights is
ambiguous”).

IV. NOVELL’S AUGUST 4, 2003 LETTER DID NOT ASSERT THAT
NOVELL OWNS THE UNIX COPYRIGHTS

SCO cites the statement in Novell’s August 4, 2003, letter that Novell “disputes
SCO’s
claim to ownership of these copyrights.” (Dkt. No. 96, ¶ 37(f).) But the only
“fact” asserted is
that Novell “disputes SCO’s claim,” which is correct. And SCO ignores the rest
of the letter,
which explains that (1) the APA excluded copyrights from the transfer; (2) the
Amendment No.
2 exception is limited to copyrights “required” for Santa Cruz Operation to
exercise APA rights;
and (3) “[u]nless and until SCO is able to establish that some particular
copyright is ‘required’
for SCO to exercise its rights under the APA, SCO’s claim to ownership of any
copyrights in
UNIX technology must be rejected.” (Ex. 5D.)

All of these points are correct. The Tenth Circuit held that the APA, by
itself,
“unambiguously excludes the transfer of copyrights.” The SCO Group, 578 F.3d at
1210. It also
found that whether the copyrights transferred because they were “required” to
exercise APA
rights presents a triable issue that “could legitimately be resolved in favor of
either party.” Id. at
1215-19. Novell’s statement of its subjective view on a legitimate dispute is
not actionable.

________________

1 Novell’s Motions In Limine Nos. 6 to 8 concern Novell’s statements in
December 2003 and
early 2004; application of common law privileges to Novell’s statements; and
Novell’s
statements in copyright applications. As noted in Motions In Limine Nos. 6 and
7, Novell’s June
and August 2003 statements were in private letters to SCO and thus cannot be
potentially
actionable until Novell later published them on its website, with copies of the
parties’ other
related correspondence.

3 Oddly, SCO’s complaint cites Novell’s statement that Amendment #2 “appears
to support”
SCO’s ownership claim as a “wrongful assertion” by Novell of ownership rights in
UNIX.”
(Dkt. No. 96, ¶ 37(c).) This makes no sense. The plain meaning is to the
contrary.

4 See Novell’s 4/20/2007 Sum. Jgt. Mot., Dkt. No. 276 at 23 & n. 7 (citing
evidence that two
SCO witnesses admitted that the APA’s exclusion of “all patents” meant that SCO
did not own
UNIX patents). SCO did not dispute this point in its opposition. (See Dkt. No.
325.)

NOVELL'S MOTION IN LIMINE NO. 6 TO PRECLUDE RELIANCE ON STATEMENTS IN
DECEMBER 2003 AND MARCH 2004 THAT DO NOT CONSTITUTE FACTUAL ASSERTIONS OF
COPYRIGHT OWNERSHIP.

INTRODUCTION

SCO's slander of title claim
points to various statements that allegedly assert that "Novell,
and not
SCO, owns the UNIX and UnixWare copyrights." (Dkt. No. 96, ¶¶ 91, 37.)
Novell
demonstrated in its Motion In Limine No. 5 that SCO should be barred
from relying on Novell's
June and August 2003 statements because they cannot
reasonably be read as asserting copyright
ownership as an objective fact.
Novell hereby moves to bar SCO from relying on Novell's later
statements in
December 2003 and March 2004 because they merely reiterate Novell's
subjective
opinion that Novell owns the copyrights, and are thus not
actionable
as a matter of law.

I. SCO MUST PROVE THAT NOVELL'S STATEMENTS
CAN REASONABLY BE INTERPRETED AS FACTUAL ASSERTIONS OF COPYRIGHT
OWNERSHIP

Slander of title requires a false statement "disparaging
claimant's title." First Sec. Bank
of Utah v. Banberry Crossing, 780 P.2d
1253, 1256-67 (Utah 1989). Whether a statement is
reasonably capable of a
wrongful meaning is an issue of law for the Court. West v.
Thomson
Newspapers, 872 P.2d 999, 1008 (Utah 1994). A court "must carefully
examine the context in
which the statement was made."1Id. at 1009. A statement is not actionable
if the context makes
clear that "the speaker is expressing a subjective
view" or "interpretation," rather than "claiming
to be in possession of
objectively verifiable facts." Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222,
1227 (7th Cir. 1993). Thus, the Utah Supreme Court held that an
implied charge that a
politician lied to get elected was not actionable as a
matter of law because it was an inference
based on the undisputed fact that
he had changed his position on a key issue after being elected.
West, 872
P.2d at 1018-20; see also Mast v. Overson, 971 P.2d 928, 934 (Utah Ct. App.
1998)
(statements not defamatory when replied to "assertions of wrongdoing"
in "spirited public

Novell believes it owns the copyrights in
UNIX, and has applied for and received
copyright registrations pertaining to
UNIX consistent with that position. Novell
detailed the basis for its
ownership position in correspondence with SCO. Copies
of our correspondence,
and SCO's reply, are available here. Contrary to SCO's
public
statements, as demonstrated by this correspondence, SCO has been well
aware
that Novell continues to assert ownership of the
UNIX
copyrights.

The clear import of this statement is that Novell
"believes" it owns the copyrights for the
reasons "detailed" in its prior
correspondence with SCO, copies of which are available on
Novell's website,
with SCO's reply.3 This is Novell's
subjective view on a disputed legal issue
that the Tenth Circuit found
"could legitimately be resolved in favor of either party." See The
SCO
Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1215 (10th Cir. 2009) (further
noting that the
"language of Amendment No. 2 concerning the transfer of
copyrights is
ambiguous").

Novell's statement that it "continues to assert"
ownership confirms the subjective nature
of Novell's belief. This is the
language of argument, not objective
fact. This argumentative tone

2

is reinforced by Novell's
concurrent publication of SCO's reply of September 10, 2003, asserting
that
SCO "disagree[s] with [Novell's] analysis and conclusions," and that Novell's
interpretation
"ignores certain provisions of the relevant documents and
does not consider the agreements
between Novell and SCO as a whole." (Ex.
6B.) Novell's publication of its June 26 and August
4, 2003 letters also did
not constitute a statement of copyright ownership because Novell's
June
letter did not claim ownership and its August letter merely expressed
the qualified opinion that
SCO did not own the copyrights "unless and until"
SCO could show that a particular copyright
was "required" to exercise APA
rights. (Id.; see Novell's Motion In
Limine No. 5, at 3.)

SCO's
complaint alleges: "At the March 2004 Open Source Business Conference in
San
Francisco, Novell's Vice Chairman Chris Stone proclaimed during his
keynote address that
Novell 'still own[s] UNIX.'" (Dkt. No. 96, ¶ 37(k).)
SCO has relied on a transcript it prepared
of a CNET broadcast, which states
(Ex. 6C at 5):

"Sorry Darl, again. Al Gore didn't invent the
Internet and you didn't invent
Linux or intellectual property law. We still
own Unix. And we believe, that Unix
is not in Linux, and that Linux is a
free, and is an open distribution, and should be.
And always will
be."

Here, the context is dispositive. SCO had filed this suit
against Novell two months
earlier. (Dkt. No. 1. 1/20/2004 Complaint.) This
was an "Open Source" conference for the
Linux community that was the target
of SCO's threats and was thus already aware of the
Novell/SCO dispute and
massive related media coverage. (See Novell's Motion In Limine No. 3
and
Exs. 3B to 3S.) Thus, the context "informed the reader/listener that the
statements were
merely another installment in the continuing heated debate."
See Mast, 971 P.2d at 933. The
only reasonable interpretation is that Mr.
Stone was repeating Novell's subjective view that it
owned the copyrights
for the reasons in its letters, which is not actionable as a matter of
law.

3

1 West held that a
charge of "manipulat[ing]" the press was not defamatory in the context of
a
"heated political battle" and in view of its "casual, albeit critical"
tone, which most readers
would view as "exaggerated commentary." Id. at
1009-10. The Utah Supreme Court recently
emphasized that West requires "a
context-driven assessment" of whether a statement is
reasonably susceptible
to a defamatory meaning, which requires the court to "weigh
competing definitions and make sense of context," and thus "leaves no room for indulging inferences in favor of the nonmoving party." O'Connor v. Burningham, 165 P.3d 1214, 1221-22 (Utah 2007).

2 SCO's complaint also alleges that Novell stated in a
January 13, 2004 press release that Novell
"retained ownership of [UNIX]
copyrights." (Dkt. No. 96, ¶ 37(j).) SCO has not designated any
press
release with this statement as a trial exhibit, and thus cannot
rely on any such
statement.

3 Novell's December 22, 2003 press
release and the related correspondence is available
at
http://www.novell.com/
news/press/archive/2003/12/pr03080.html. Clicking
the "here"
hyperlink in the press release brings up copies of Novell's
letters to SCO of June 26 and August
4, 2003, and SCO's reply of September
10, 2003. (See Ex. 6B.)

NOVELL’S MOTION IN LIMINE
NO. 7 TO DETERMINE THAT
COMMON LAW PRIVILEGES
APPLY TO ALLEGEDLY
DEFAMATORY PUBLICATIONS

SCO alleges that Novell slandered SCO’s title to certain copyrights by asserting
that
Novell, and not SCO, owns those copyrights. (Dkt. 96 at ¶ 91.) According to SCO,
Novell
published that allegedly defamatory matter in: (1) a public letter dated May 28,
2003; (2) private
correspondence sent to SCO in June and August 2003; (3) copyright applications
submitted to
the United States Copyright Office in September and October 2003; and (4)
various other public
announcements, including a December 22, 2003 press release that republished
hitherto private
correspondence with SCO. (Id. at ¶ 37.) By this motion, Novell seeks rulings in
limine that (a)
its private correspondence to SCO is not actionable because it is protected by
the common law
litigation privilege; and (b) its broader publications are not actionable unless
SCO can prove that
Novell acted solely out of malice or bad faith because they are subject to the
recipient’s and rival
claimant’s privileges.1

I. ARGUMENT

All of Novell’s allegedly defamatory publications were made after SCO sent
demand
letters to Novell and to 1,500 other companies, in which SCO published its own
claim that it
owned the copyrights at issue in this case and demanded that the recipients pay
for licenses.2
(Dkt. 121 at ¶ 52.) Under these circumstances, a rule imposing liability on
Novell for disputing
SCO’s ownership would be unfair both to Novell and to the third parties from
whom SCO wants
to extract licensing fees, and it is not the law. Slander of title requires a
false statement made
“without privilege,” Dowse v. Doris Trust Co., 116 Utah 106, 110-11, 208 P.2d
956 (1949), and
Novell’s publications were privileged.

Novell’s publication of its ownership claim in private pre-litigation
correspondence to
SCO, responding to SCO’s demand letter, is protected by the litigation
privilege, which is

1

absolute. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997) (quoting
Restatement (Second)
of Torts [“Rest.”] § 587) (“A party to a private litigation … is absolutely
privileged to publish
defamatory matter … in communications preliminary to a proposed judicial
proceeding … if the
matter has some relation to the proceeding”).3

Novell’s broader publications, in turn, are protected by two other, conditional
privileges.
First, “[t]he law has long recognized that a publication is conditionally
privileged if made to
protect a legitimate interest of the … recipient.” Brehany v. Nordstrom, 812
P.2d 49, 59 (Utah
1991) (citing, inter alia, Rest. § 595); see also Rest. § 646A (privilege
applies to slander of
title).4 Second, a further privilege applies specifically to a rival’s
publication of its claim to
property (including intangible property). Rest. § 647; see also id. cmt. b
(privilege is “applicable
to … injurious falsehood”); Jack B. Companies v. Nield, 751 P.2d 1131, 1134
(Utah 1988)
(“slander of title … is … injurious falsehood”). Novell seeks in limine rulings
that its public
disclosures are covered by both privileges. See O’Connor v. Burningham, 165 P.3d
1214, 1224
(Utah 2007) (“Whether a statement is entitled to the protection of a conditional
privilege presents
a question of law; whether the holder of the privilege lost it due to abuse
presents a question of
fact”). Taking them in order, the other recipients of Novell’s publications—to
whom SCO also
sent demand letters—have a legitimate interest in ascertaining the true
ownership of the
copyrights SCO is threatening to sue them on, so the recipient’s privilege also
applies. See Rest.

2

§ 595. And the rival claimant’s privilege applies, by definition, to any
assertion by Novell that it
owns the copyrights claimed by SCO.

SCO bears the burden of overcoming the conditional privileges “by proof of
malice or
excessive publication.” Brehany, 812 P.2d at 59. Novell also requests that the
Court rule in
limine that SCO cannot show excessive publication because it is suing Novell for
publishing to
precisely those third parties that have interest in the true ownership of the
copyrights, and any
publication to disinterested parties is irrelevant to SCO’s supposed damages.
See Rest. § 599
cmt. b (“If the harm done by the abuse is severable, and can be distinguished
from the harm done
by a part of the publisher’s conduct that would properly be privileged, he is
subject to liability
only for the excess of harm resulting from his abuse”); see generally O’Connor,
165 P.3d at
1224 (the Restatement’s teachings on privilege “enjoy close ties to common sense
and thus
appear worthy of our confidence”). The only remaining issue that would leave for
the jury to
decide is whether Novell made those publications in bad faith, solely out of
ill-will, and with no
intent to protect the legitimate interests of the recipients. See Rest. § 603
cmt. a. (“if the
publication is made for the purpose of protecting the interest in question, the
fact that the
publication is inspired in part by resentment or indignation at the supposed
misconduct of the
person defamed does not constitute an abuse of the privilege”); id. at § 647
cmt. b (rival
claimant’s privilege “permits the publisher to assert a claim … provided that
the assertion is
honest and in good faith, even though his belief is neither correct nor
reasonable”).

II. CONCLUSION

This Court should rule, in limine, that (1) Novell’s publication of its
ownership claim to
SCO is subject to the absolute litigation privilege; and (2) any broader
publication of that claim
is conditionally protected by the recipient’s interest and rival claimant’s
privileges.

In paragraph 91 of its operative Second Amended Complaint (Dkt.
96), SCO alleges that "Novell ... slandered SCO's title ... to its
... copyrights," inter alia, "by making false oaths of ownership to
public officials." SCO has reference to declarations made by Novell
in support of applications for copyright registration that Novell
made to the United States Copyright Office, pursuant to 17 U.S.C.
§ 409. By this motion, Novell seeks an order precluding SCO
from relying on Novell's applications to support its slander of
title claim. This motion is made pursuant to Federal Rule of
Evidence 105, and on the ground that Novell's applications are a
privileged exercise of its First Amendment right to petition the
Government.

I. ARGUMENT

The right "to petition the Government" is enshrined in the First
Amendment to the United States Constitution.

In recognition of this right, the United States Supreme
Court has held that ... organizations are immune from liability
under antitrust laws for actions constituting petitions to the
government. [Citations.] Over the years, courts have extended this
immunity doctrine, referred to as the Noerr-Pennington
Doctrine [citation], to "protect ... against tort claims as well as
antitrust claims." Searle v. Johnson, 646 P.2d 682, 684 (Utah
1982).

"[T]he right to petition extends to all departments of the
Government," including "administrative agencies," California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510,
92 S. Ct. 609 (1972), such as the United States Copyright Office.
Novell was exercising

2

this right when it applied to register its
copyrights. Thus unless Novell's applications were a sham, no tort
liability can arise from them. See Anderson, 2005 UT at
¶ 26.

Judge Kimball granted Novell summary judgment on the copyrights
ownership issue. (Dkt. 377 at 62.) Although that grant was reversed
on appeal, the fact that Judge Kimball made it demonstrates that
Novell's assertions of ownership in support of its applications to
register those copyrights were not objectively baseless. See
Harris Custom Builders Inc. v. Hoffmeyer, 834 F. Supp. 256,
261-62 (N.D. Ill. 1993) ("An action that is well enough grounded,
factually and legally, to survive a motion for summary judgment is
sufficiently meritorious to lead a reasonable litigant to conclude
that they had some chance of success on the merits"). Moreover, the
Tenth Circuit has ruled:

If we were to interpret the contract based initially
only on the APA itself—without regard to Amendment No.
2—we agree that its language unambiguously excludes the
transfer of copyrights. ... [¶] ... [T]he contractual language
of Amendment No. 2 concerning the transfer of copyrights is
ambiguous.

SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1210 (10th
Cir. 2009). The Tenth Circuit further observed: "Novell has
powerful arguments to support its version of the transaction."
Id. at 1215. Those determinations likewise conclusively
establish Novell's objective reasonableness.1 Thus the sham exception to the
petitioner's immunity does not apply, see Professional Real
Estate, 508 U.S. at 57 ("an objectively reasonable effort ...
cannot be sham"), and the First Amendment bars SCO from relying on
Novell's privileged applications to support its slander of title
claim.

Here in the Tenth Circuit there is a wrinkle. The Tenth Circuit
has stated that outside the antitrust context, "the Petition Clause
protects objectively reasonable lawsuits from being enjoined, but
requires a court to look at the underlying statute to determine
whether the initiator

3

of the suit can be held liable." Cardtoons
v. Major League Baseball Players Ass'n, 208 F.3d 885, 890 n. 4
(10th Cir. 2000) (en banc). However, that statement "is dicta," and
"[n]umerous other courts have ... held that the Petition Clause
places limits on liability for the commission of a range of common
law torts." Scott v. Hern, 216 F.3d 897, 914 & n. 9
(10th Cir. 2000) (citing cases); see also Sosa v. DirecTV,
Inc., 437 F.3d 923, 938 (9th Cir. 2006) ("we are doubtful that
... Cardtoons survives the Supreme Court's decision" in BE &
K Construction Co. v. NLRB, 536 U.S. 516, 525, 122 S. Ct. 2390
(2002)). Even if this Court were to apply the criticized dicta from
Cardtoons, the Utah Supreme Court is the final authority on "the
underlying statute" (viz., Utah defamation law) to which Cardtoons
says the Court should look "to determine whether the initiator ...
can be held liable," and the Utah Supreme Court has apparently
recognized that the petitioner's immunity and correlative sham
analysis applies to all Utah torts. See Anderson, 2005 UT at
¶ 26, 116 P.3d at 332; see also Scott, 216 F.3d at 915
(finding Cardtoons dicta inapposite where Colorado courts had
already "articulated an objectively-reasonable-litigation standard"
for state law tort).

II. CONCLUSION

Because Novell's constitutionally-protected applications for
copyright registration cannot give rise to tort liability, SCO
cannot rely on them to support its slander of title claim.

________________

1
In a companion motion in limine (no. 4), Novell demonstrates at
greater length that its objective reasonableness is law of the
case.